The materials and information have been prepared for informational purposes only. This is not legal advice, nor intended to create or constitute a ...

Sandy Andre
                              Patrick Edsenga

The materials and information have been prepared for
informational purposes only. This is not legal advice, nor
intended to create or constitute a lawyer-client relationship.
Before acting on the basis of any information or material,
readers who have specific questions or problems should
consult their lawyer.

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                 © 2021 Miller Johnson. All rights reserved.         1

 Review current federal requirements
 Review current state and local requirements
 Practical considerations
 Provide a framework on how to analyze compliance
  obligations
 Questions

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 Offer and provide vaccine to LTC residents and staff
 COVID-19 disease and vaccine education
 Facility reporting: On a weekly basis, report the COVID-19
 vaccination status and related data elements of all residents
 and staff

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 Announced: June 10, 2021
 Effective: June 21, 2021
 Compliance dates:
   Most provisions: July 6, 2021
   Remaining provisions: June 21, 2021
 Applies to all settings where any employee provides
  healthcare services or healthcare support services

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 Healthcare services:
  Services that are provided to individuals by professional healthcare
   practitioners (e.g., doctors, nurses, emergency medical personnel,
   oral health professionals) for the purpose of promoting, maintaining,
   monitoring, or restoring health.
  Delivered through various means, including: hospitalization, long-
   term care, ambulatory care, home health and hospice care,
   emergency medical response, and patient transport.

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 Healthcare support services
  Services that facilitate the provision of healthcare services
  Includes patient intake/admission, patient food service, equipment
   and facility maintenance, housekeeping services, healthcare laundry
   services, medical waste handling services, and medical equipment
   cleaning/reprocessing services

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 Some provisions do not apply at all in certain settings
 Some provisions apply only on a limited basis in certain
  settings
 Some provisions do not apply to employees who are fully
  vaccinated

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 16 Requirements:
  COVID-19 Plan                        Physical Barriers
  Patient Screening and                Cleaning and Disinfection
   Management                           Ventilation
  Standard and Transmission-           Health Screening and Medical
   based Precautions                     Management
  Personal Protective Equipment        Vaccination
  Aerosol-Generating Procedure         Training
   On a Person with                     Anti-Retaliation
   suspected/confirmed COVID-19         No-Cost Provisions
  Physical Distancing                  Recordkeeping
                                        Reporting
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 Federal Employees
 Federal Contractors
 Health care workers at Medicare and Medicaid Participating
  health care settings
 Private Employers

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 Federal employees must be fully vaccinated by
  November 22, 2021; last dose November 8, 2021
 Regardless of work location or work arrangement (e.g.,
  telework, remote work, etc.)
 Accommodation:
   Disability
   Sincerely held religious belief, practice, or observance
 Failure to comply:
   Education and counseling (5 days)
   Short suspension (14 days or less)
   Propose removal via required procedural rights to the employee
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 Executive Order 14042
   Ensuring Adequate COVID Safety Protocols for Federal Contractors
 September 24, 2021
   Safer Federal Workforce Task Force guidance
   1. Vaccination of covered contractor employees, except in limited
      circumstances where an employee is legally entitled to an
      accommodation, by December 8, 2021

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 2. Requirements related to masking and physical distancing while
    covered contractor workplaces.
    Wear appropriate masks consistently and correctly
    Wear appropriate masks in any common areas or shared workspaces
    For individuals who are not fully vaccinated, wear a mask in crowded
    outdoor settings or during outdoor activities that involve sustained close
    with other people who are not fully vaccinated, consistent with CDC
    guidance.
 3. Designation by covered contractors of a person or persons to
    coordinate COVID-19 workplace safety efforts at covered contractor
    workplaces.

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 Require vaccination of staff within all Medicare and
  Medicaid-certified facilities
 Expanding emergency regulations requiring vaccinations for
  nursing home workers to be applicable to hospitals, dialysis
  facilities, ambulatory surgical settings, home health
  agencies, among others
 CMS developing an Interim Final Rule with Comment Period
  that will be issued in October 2021.

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 Two provisions:
 1. Rule that requires all employers with 100 or more employees to
    ensure their workforce is fully vaccinated or require any workers
    who remain unvaccinated to produce a negative test result on at
    least a weekly basis.
 2. Rule that requires employers with more than 100 employees to
    provide paid time off for the time it takes workers to get vaccinated
    or recover from post-vaccination effects

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 ETS Process
  2 determinations made in order to issue ETS:
    Employees are exposed to a grave danger from exposure to substances or
     agents determined to be toxic of physically harmful or from new hazards,
     and
    Such an emergency standard is necessary to protect employees from such
     danger
 Paid Time Off
  Outside Agency Authority?
  Conflict with Congressional intent?

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 Personal Protective Equipment Standard
 Sanitation Standard
 Respiratory Protection Standard
 Hazard Communication Standard
 Access to Employee Exposure & Medical Records
 Recording and Reporting Occupational Injuries and Illnesses

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 General Duty Clause
  Employers have an obligation to “furnish to each employee,
   employment and a place of employment that is free from recognized
   hazards that are causing, or are likely to cause, death or serious
   physical harm to the employees.”
  MIOSHA says
   Enforcement Guidance: When determining if there is sufficient evidence
    for a general duty clause violation, the employer’s COVID-19 program in
    its entirety will be evaluated. If after considering all the measures the
    employer has implemented, there still exists a recognized hazard, a
    general duty clause citation will be warranted.

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 General Duty Clause
  Point: Your organization has to determine what it needs to do to, in
   good faith, keep COVID-19 out of and prevent the spread in the
   workplace
  How?
    Review recommendations based on
     CDC guidance
    Review OSHA guidance

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 Employee obligation not to report to work
 Employer duty to not discharge, discipline, or otherwise
  retaliate against an employee
 Three circumstances:
   Tests Positive: Follow CDC isolation period
   Displays principal symptoms of COVID-19
    Tests negative for COVID-19, or
    Follow CDC isolation period
  Close contact with individual who tests positive for COVID-19
    Follow CDC quarantine period
      Adopts differentiation between unvaccinated and fully vaccinated employees

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 Nursing facilities, Homes for the Aged, and Adult Foster care
  Facilities
 Residential Care Facilities
 Prisons

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 Testing Protocols
  Initial testing of all new or returning residents and newly hired staff when the
     individual is unvaccinated and has not been tested in the 72 hours prior to intake or
     start date
    Testing any resident/staff member with symptoms or suspected exposure to
     COVID-19, regardless of that individual’s vaccination status
    Weekly testing of all residents/staff in facilities experiencing an outbreak, until 14
     days after the last new positive case, regardless of vaccination status
    Weekly testing of all unvaccinated staff
 Request, obtain, maintain a record of vaccination status for
 all residents/employees

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 Comply with CMS guidance, QSO-20-39-NH
  Dining and group activities: physical distancing, masks, hand hygiene
  Notifications:
   Within 12 hours: Inform employees and residents of presence of a
      confirmed COVID-19 positive employee/resident
   Within 24 hours:
       Inform legal guardians/healthcare proxies of all residents of confirmed COVID-
          19 positive employee/resident
         Post a notice indicating presence of confirmed COVID-19 employee/resident
         Adopt protocol to inform prospective residents/staff or presence of a confirmed
          COVID-19 employee/resident
         Support/comply with contact tracing efforts

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 Recordkeeping requirements
 Report presumed positive COVID-19 cases in the facility to
 MDHHS and local health departments

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  Testing of staff members                      Transmission prevention
        and inmates                                   protocols
All persons regardless of                     Exclude staff members or inmates
vaccination status if:                        who:
  Were recently exposed to someone with          Do not comply with testing requirements
     suspected / confirmed COVID-19               Tests positive for COVID-19
    Exhibit principal symptoms of COVID-         Exhibits principal symptoms of COVID-19
     19                                           Not fully vaccinated and was exposed to
    Are newly hired and scheduled to begin        someone with suspected/confirmed
     work within 72 hours                          COVID-19
    Otherwise required to test                   Otherwise prohibited from reporting to
                                                   work under COVID-19 Employment
                                                   Rights Act

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 Identify those with a known or suspected exposure
  throughout the facility
 Each such person must be tested daily for 14 days following
  outbreak notification

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 Examples:
  School/education setting Mask Orders
  School/educational setting Quarantine Orders
  Childcare facilities

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 CDC:
  Effective July 27, 2021
  Added recommendation for fully vaccinated people to wear a mask in
  public indoor settings in areas of substantial or high transmission
 MIOSHA General Duty Clause
  Point: Your organization has to determine
   what it needs to do, in good faith, to keep
   COVID-19 out of and prevent the spread
   in your workplace.

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The EEOC says:                 OSHA says:                    NLRA says:
 The federal EEO laws         2009 Standard               Protected, concerted
 do not prevent an             Interpretation: Flu           activity
 employer from                 vaccine                      Current CBA permit
 requiring all                  Although OSHA               mandatory
 employees physically            does not require            vaccination policy?
 entering the workplace          employees to take
 to be vaccinated for            the vaccines, an
 COVID-19 (subject to            employer may do
 accommodation                   so.
 provisions).

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                 Pros                                        Cons
 Disruption to our business if we        Disruption to our business if we
 don’t                                     do
   Stability:                               Stability:
     Return to in-person work                 Recruitment and retention
     Lessened quarantine requirements          challenges
 FDA status: Pfizer approved in          FDA status: Currently EUA
  Sept.
 MIOSHA General Duty Clause

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 Employees with an ADA-covered        Employers can select alterative
   disability may be entitled to         accommodations
   exemption if disability prevents       Work alone/physical distancing
   them from complying with               COVID testing
   employer’s COVID-19 safety             PPE
   requirement                            Reassignment
  Establish an interactive reasonable  Remote work
   accommodation process                Not required to accommodate if
    Can require medical documentation   undue hardship
                                          Current public health and economic
                                                         circumstances are relevant to this
                                                         analysis

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 Title VII requires employers to reasonably accommodate an employee’s
 sincerely held religious beliefs
  Unless it would be an undue hardship on business operations
    Undue hardship is “more than de minimis cost,” which is a much lower standard than under
     the ADA
  Religion: Very broad definition, but more than personal preferences, medical
   beliefs, or political philosophies
    Moral or ethical beliefs as to right or wrong that are sincerely held with the strength of
     traditional religious views
    Does not have to be widely practiced
  Can require additional supporting documentation if there is an objective basis for
   questioning the religious nature or the sincerely held religious belief.

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 Example: Pending legislation in Idaho
  “HB 443 would prohibit any employer or company that has entered
   into a contract with the State, from discharging, refusing to hire, or
   taking any action directly or indirectly related to employment on the
   basis of an employee’s refusal to be vaccinated due to medical
   contraindications or reasons of conscience. Such reasons of
   conscience include religious or philosophical beliefs.”

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 Likely to be the exclusive remedy
  Cases considering different vaccines have determined that adverse
   reactions to mandatory vaccinations may result in workers’
   compensation claims
  Exclusive remedy: Provides that recovery of workers’ compensation
   benefits will be the employee’s exclusive remedy against an employer
   for a personal injury or occupational disease.
 If not exclusive remedy: Plaintiff must still prove causation

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 “The DOL and OSHA, as well as other federal agencies, are
  working diligently to encourage COVID-19 vaccinations.
  OSHA does not wish to have any appearance of discouraging
  workers from receiving COVID-19 vaccination and also does
  not wish to disincentive employers’ vaccination efforts.”
 As a result: No requirement to record adverse reactions until
  May 2022

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 Who is the employee? (job responsibilities)
  Who is the employer?
  Where is the work being performed?
  What federal requirements apply?
  What state requirements apply?
  What local requirements apply?
  Do any of our organization’s policies apply?
  What employee relations concerns should we be considering?

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                Federal                                             State
• May 2021: CMS Vaccination Education and        • Existing MIOSHA obligations
  Reporting
• June 2021: OSHA Healthcare ETS                 • COVID-19 Employment Rights Act
• September 2021: Federal Employee COVID-19      • MDHHS Orders:
  vaccination mandate
• September 2021: Federal Contractor COVID-          • Skilled Nursing Facilities/Homes for the
  19 vaccine mandate                                   Aged/Adult Foster Care, Residential Care
                                                       Facilities, Prisons
                                                 • Local Health Orders
Coming Soon?                                     Coming Soon?
• CMS Medicare/Medicaid Participant COVID-19     • Restrictions on mandatory vaccination,
  vaccine mandate                                  vaccine passports, vaccination as a protected
                                                   class
• OSHA 100+ Employee ETS                         • MIOSHA adoption of OSHA 100+ Employee
                                                   ETS                                   42

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                  Sandy Andre                                     Patrick Edsenga
                    616.831.1731                                     616.831.1713
              andres@millerjohnson.com                         edsengap@millerjohnson.com

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